Law Commons^™

Transforming (Perceived) Rigidity In Environmental Law Through Adaptive Governance, J.B. A. Ruhl, Hannah Gosnell, Brian C. Chaffin, Craig A. Arnold, Et Al.

Vanderbilt Law School Faculty Publications

The Endangered Species Act (ESA) is often portrayed as a major source of instability and crisis in river basins of the U. S. West, where the needs of listed fish species frequently clash with agriculture dependent on federal irrigation projects subject to ESA Section 7 prohibitions on federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on Section 7 characterizes the process as unwaveringly rigid, the legal hammer forcing federal agencies to consider endangered species needs when proposing operations and management plans for federally funded irrigation. In this paper, we identify barriers to an integrated …

Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman

Vanderbilt Law Review

State and local governments have long struggled to design optimal mechanisms for selecting public officials. Centuries of experimentation have left us with several techniques: election (partisan or otherwise), political appointment, or selection by some kind of technocratic commission. Despite our extensive experience with these systems, no consensus has emerged as to which system is best under what circumstances. Several questions remain unclear: What effect does selection method have on the quality of services that public officials provide? Does selection method systematically affect the ideological composition of officials? If so, does that effect matter? And what determines whether a jurisdiction adopts …

The Ideological Consequences Of Selection: A Nationwide Study Of The Methods Of Selecting Judges, Brian T. Fitzpatrick

Vanderbilt Law Review

How best to select judges has been the subject of great debate ever since the founding of the United States. Over the course of American history, four basic methods of selection have been tried (with some variations among them): appointment by elected officials, partisan election, nonpartisan election, and selection by a technocratic commission.' The first three methods will be familiar to most readers: gubernatorial or legislative appointment of judges, contested elections with party affiliation on the ballot, and contested elections without party affiliation on the ballot. But readers may be less familiar with the last method: many states today use …

Judicial Laterals, Jonathan R. Nash

Vanderbilt Law Review

Lawyers already in practice at one law firm often move to another law firm. This type of move is referred to as "lateraling." A lawyer might choose to lateral for many of the reasons we often think people in general take new positions: better job security, better pay, better benefits, greater prestige, more interesting work, better future job prospects, more leisure time, and/or more predictable hours.' In contrast to lawyers in private practice, we do not commonly associate judges with lateraling. But the fact is that, just as some judges are reassigned or promoted within a judicial system (for example, …

Contingent Fee Litigation In New York City, Eric Helland, Daniel Klerman, Brendan Dowling, Alexander Kappner

Vanderbilt Law Review

Since 1957, New York courts have required contingent fee lawyers to file "closing statements" that disclose settlement amounts, lawyers' fees, an accounting of expenses, and other information. This Article provides a preliminary analysis of these data for the period 2004- 2013. Among this Article's findings are that settlement rates in New York state courts are very high (84%) relative to previous studies; that very few cases are resolved by dispositive motions; that litigated cases and settled cases have almost exactly the same average recovery; that median litigation expenses, other than attorney's fees, are 3% of gross recovery; that claims are …

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Vanderbilt Law Review

Given that there is significant variation across the states in terms of whether death examination offices are run by trained professionals or local politicians, we should, in theory, be able to empirically test the question of whether professionals or politicians do a better job of adjudicating death. It turns out that, although there are strong opinions about what the answer surely is, there has been little in the way of serious empirical work addressing this question. Our Article takes a first cut at looking at how one might do that analysis.

Judging Law In Election Cases, Michael S. Kang, Joanna M. Shepherd

Vanderbilt Law Review

How much does law matter in election cases where the partisan stakes are high? At first glance, election cases may seem the worst context for studying the influence of law on judicial decision making. Election cases, which decide the applicable rules for a given election, often determine election outcomes and therefore feature the highest political stakes in the balance. There is great temptation for judges to decide these cases in a partisan fashion to help their side. And we have found empirically in earlier work that judges do often appear influenced by partisanship in deciding these cases for their own …

Public Perceptions Of Gender Bias In The Decisions Of Female State Court Judges, Michael P. Fix, Gbemende E. Johnson

Vanderbilt Law Review

How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial outcomes. Does the public perceive the decisions of female state court judges as being "biased" by their gender identity, particularly in cases involving reproductive rights/family law? Also, does the public view female judges on state courts as more likely to rely on ideology when …

Judicial Reform As A Tug Of War: How Ideological Differences Between Politicians And The Bar Explain Attempts At Judicial Reform, Adam Bonica, Maya Sen

Vanderbilt Law Review

What predicts attempts at judicial reform? We develop a broad, generalizable framework that both explains and predicts attempts at judicial reform. Specifically, we explore the political tug of war created by the polarization between the bar and political actors, in tandem with existing judicial selection mechanisms. The more liberal the bar and the more conservative political actors, the greater the incentive political actors will have to introduce ideology into judicial selection. (And, vice versa, the more conservative the bar and the more liberal political actors, the greater incentive political actors will have to introduce ideology into judicial selection.) Understanding this …

The Effects Of Trial Judge Gender And Public Opinion On Criminal Sentencing Decisions, Christina L. Boyd, Michael J. Nelson

Vanderbilt Law Review

We explore the effects of a trial judge's gender in criminal sentencing decisions by addressing two unsettled questions. First, do female and male trial judges sentence criminal offenders differently from one another? While numerous qualitative and quantitative scholars have examined this question, the results lack consistency. Second, are female trial judges' sentencing practices differentially affected by public opinion compared to male judges' behavior? Little research exists on this second question, but existing theory on how females and males make decisions and operate as judges is informative. To provide new empirical insight into these questions, we rely on two sources of …

Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn

Vanderbilt Law Review

By and large, judicial authority is a product of perceived validity. Judges lack an independent means of enforcement; they wield "no influence over either the sword or the purse," "neither force nor will." Rather, the judicial branch operates under the auspices of its legitimacy, "a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." When the public sees the judiciary as legitimate, it accepts and adheres to its rulings even when it may perceive certain decisions to be ideologically …

Measuring Justice In State Courts: The Demographics Of The State Judiciary, Tracey E. George, Albert H. Yoon

Vanderbilt Law Review

For most individuals and organizations, state courts--especially state trial courts-are the "law" for all effective purposes. State courts are America's courts. But, we know surprisingly little about state court judges despite their central and powerful role in lawmaking and dispute resolution. This lack of information is especially significant because judges' backgrounds have important implications for the work of courts. The characteristics of those who sit in judgment affect the internal workings of courts as well as the external perception of those courts and judges. The background of judges will influence how they make decisions and can impact the public's acceptance …

Improving Access To Justice In State Courts With Platform Technology, J.J. Prescott

Vanderbilt Law Review

Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes-often with the government-is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often …

Judicial Politics And Decisionmaking: A New Approach, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Vanderbilt Law Review

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly one quarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

Carbon Taxation By Regulation, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that, even though a carbon tax remains politically elusive, a carbon taxation by regulation has begun to flourish as a way of financing carbon reduction. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general financial taxation. Various non-tax subsidies in customer energy rates have enormous untapped potential for promoting low-carbon sources of energy, while also balancing broader economic and social welfare goals. While carbon taxation by regulation offers many benefits, regulators' narrow fixation on consumer protection and economic goals has hobbled realization of its potential. …

The Role Of Individual And Household Behavior In Decarbonization, Michael P. Vandenbergh, Paul C. Stern

Vanderbilt Law School Faculty Publications

This Article asks: why does household behavior matter for deep decarbonization, and how can laws, policies, and programs that target behavior change be employed to facilitate decarbonization? Individuals and households can affect carbon emissions in multiple ways through their behavior as environmental activists, by offering support or opposition to environmental public policies in their citizen roles, by exerting influence within organizations of which they are a part, by making investment decisions based on carbon considerations, and by acquiring and using energy and carbon-emitting goods and services or meeting their needs in ways that do not emit greenhouse gases. Each of …

The Net Effects Of Medical Malpractice Tort Reform On Health Insurance Losses, W. Kip Viscusi, Patricia H. Born, J. Bradley Karl

Vanderbilt Law School Faculty Publications

In this paper, we examine the influence of medical malpractice tort reform on the level of private health insurance company losses incurred. We employ a natural experiment framework centered on a series of tort reform measures enacted in Texas in 2003 that drastically altered the medical malpractice environment in the state. The results of a difference-in-differences analysis using a variety of comparison states, as well as a difference-in-difference-in-differences analysis, indicate that ameliorating medical malpractice risk has little effect on health insurance losses incurred by private health insurers.

Honest Copying Practices, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, …

The Ideological Consequences Of Selection: A Nationwide Study Of The Methods Of Selecting Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

One topic that has gone largely unexplored in the long debate over how best to select judges is whether there are any ideological consequences to employing one selection method versus another. The goal of this study is to assess whether certain methods of selection have resulted in judiciaries that skew to the left or right compared with the public at large in those states. In particular, I examine the ideological preferences of state appellate judges in all 50 states over a 20-year period (1990-2010) as measured by their relative affiliation with the Republican or Democratic Party through campaign contributions, voter …

Judicial Politics And Decisionmaking: A New Approach, Chris Guthrie, Andrew J. Wistrich, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly onequarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."

State Criminal Appeals Revealed, Nancy J. King, Michael A. Heise, Nicole A. Heise

Vanderbilt Law School Faculty Publications

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state …

Symposium: The Least Understood Branch: The Demands And Challenges Of The State Judiciary: Introduction, Alex Carver, Susanna Rychlak

Vanderbilt Law Review

On March 31, 2017, the Vanderbilt Law Review, in conjunction with the American Constitution Society, hosted a Symposium at Vanderbilt Law School entitled The Least Understood Branch: The Demands and Challenges of the State Judiciary. This Symposium began five months earlier at Emory University School of Law, where the Symposium's contributors gathered to discuss the importance and difficulties of studying state courts. This theme is reflected in the articles published in this Symposium issue. The importance of state courts to the American system of justice can hardly be overstated. As Professors Tracey George and Albert Yoon recognize, "The work of …

Introduction: The Power Of New Data And Technology, Laura E. Dolbow

Vanderbilt Law Review

Modern technology has revolutionized the law. Computers drastically expanded the scope and speed of access to legal information. Unlike the days when lawyers had to climb ladders in the stacks to find specific statutes or cases in printed reporters, Westlaw brings up thousands of resources at the touch of a fingertip. Beyond transforming legal research, new data and technology have transformed the law in two other powerful ways: they have made the law more accessible to nonlawyers, and they have made it possible for lawyers to gather information about how the law is being executed. The articles in this Section …

State Criminal Appeals Revealed, Michael Heise, Nancy J. King, Nicole A. Heise

Vanderbilt Law Review

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this Article exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, "NCSC Study"). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.

Do Your Job: Judicial Review Of Occupational Licensing In The Face Of Economic Protectionism, Nicole A. Weeks

Vanderbilt Law Review

Despite efforts to challenge certain occupational licensing schemes as impermissibly driven by naked economic protectionism, federal appellate courts disagree on the legitimacy owed to the protectionist motivations that commonly prompt these regulations. To eliminate the current confusion, this Note advocates for the application of rational-basis-with-judicial-engagement review. The Supreme Court has demonstrated a willingness to engage in such analysis before-in both its animus jurisprudence over the past decades and more recently in its meticulous cost-benefit inquiry in Whole Woman's Health v. Hellerstedt-thereby weakening its claims of incompetence in evaluating the motivations of lawmakers. To avoid hindering the economic well being of …

A Theory Of Differential Punishment, Jack Boeglin, Zachary Shapiro

Vanderbilt Law Review

A puzzle has long pervaded the criminal law: why are two offenders who commit the same criminal act punished differently when one of them, due to circumstances beyond her control, causes more harm than the other? This tradition of result-based differential punishment the practice of varying offenders' punishment based on whether or not they cause specific "statutory harms"-has long stood as an intractable problem for scholars and jurists alike.

This Article proposes a solution to this long-standing conceptual problem. We begin by introducing a dichotomy between two broad and exhaustive categories of ideological justifications for punishing criminal offenders. The first …

The Reasonable Investor Of Federal Securities Law, Amanda Rose

Vanderbilt Law School Faculty Publications

Federal securities law defines the materiality of corporate disclosures by reference to the views of a hypothetical reasonable investor. For decades the reasonable investor standard has been a flashpoint for debate with critics complaining of the uncertainty it generates and defenders warning of the under-inclusiveness of bright-line alternatives. This Article attempts to shed fresh light on the issue by considering how the reasonable investor differs from its common law antecedent, the reasonable person of tort law. The differences identified suggest that the reasonable investor standard is more costly than tort laws reasonable person standard - the uncertainty it generates is …

Shareholder Voting In Proxy Contests For Corporate Control, Uncontested Director Elections And Management Proposals, Randall Thomas, Patrick C. Tricker

Vanderbilt Law School Faculty Publications

This paper surveys the empirical literature on shareholder voting, specifically on votes related to contested and uncontested director elections and on management proposals. While much of current theory depicts shareholder votes as an ineffective control on the boards decision making, the empirical literature paints a more nuanced picture. When a proxy contest breaks out, shareholders wield immense influence. These contests tend to have significant benefits for the corporation, including facilitating a change in management, reducing unnecessary liquidity, and prompting the payout of dividends. Even in uncontested director elections, shareholders decisions to vote for or withhold their vote reflect the company's …

Fifty Years Later And Miranda Still Leaves Us With Questions, Nicole Langston, Bernice B. Donald

Vanderbilt Law School Faculty Publications

This affords the suspect safeguards to make an informed choice between speech and silence and prevents involuntary statements. Although Miranda warnings are seemingly standard, the Miranda decision did not come without criticism.' Now, on the fiftieth anniversary of the Supreme Court's decision, the topic still garners intense debate.' Even after all of these years, there are still critics who do not support Miranda warnings, and now they rely on long-term studies about the effectiveness of Miranda warnings to support their positions. Yet, even with these new studies, there still remains some ambiguity about the effectiveness of Miranda rights concerning whether …

Lamarck Revisited: The Implications Of Epigenetics For Environmental Law, Michael P. Vandenbergh, David J. Vandenbergh, John G. Vandenbergh

Vanderbilt Law School Faculty Publications

For generations, a bedrock concept of biology was That genetic mutations are necessary to pass traits from one generation to the next, but new developments in genetics are challenging this fundamental assumption. A growing body of scien- tific evidence demonstrates that chemical alteration of the way a gene functions, whether through exposure to chemicals, foods or even traumatic experiences, may not only affect the exposed individual, but also the individual's offspring for two generations or more. This interaction between genes and the environment, known as epigenetics, has revolutionized the understanding of how genes are expressed within an individual and how …